Montana Money Shenanigans Against Dirk Sandefur

October 17, 2016 (Fault Lines) — Last week, Trump tried to use Hillary Clinton’s defense of a child rapist in 1975 against her. This is hardly a new tactic, and it’s not limited to defense attorneys. Apparently, anyone who’s ever been involved with a criminal case can be disqualified from office.

We’ve previously covered the story of Ed Sheehy, a Montana public defender who was defeated in his 2012 run for the Montana Supreme Court when two billionaires dumped a lot of money into criticizing him for defending his clients. The billionaires in question, Charles Schwab and James Cox Kennedy, had a case pending before the same court; though the ads of the astroturf organization called the “Montana Growth Network” forgot to mention that.

Something similar is happening in Montana right now. A judge named Dirk Sandefur is running for a seat on the Montana Supreme Court, and a group called the Republican State Leadership Committee has dropped almost a hundred grand into beating him. To be fair, this doesn’t seem to be as egregious as Sheehy’s case; since the RSLC is an ongoing concern of the Republican Party (not summoned into existence for one election), and there doesn’t seem to be any specific case that the RSLC is trying to influence.

What’s just as bad, though, are the sort of attacks that the RSLC is making against Sandefur. Its website, stopsetemfreesandefur.com, is a doozy. In enormous type, it reads

CHILD PORN

RAPING A 10 YEAR OLD

SATANIC RITUAL

Oh my God! What kind of sick bastard is this?

As it happens, all of these are cases that Sandefur presided over while he was a judge. To get an idea of the contempt in which the RSLC holds its audience, let’s take a look at the details of these horrible events.

Dustin Michael Mahoney, 30, pleaded guilty to one count of sexual abuse of children, a felony, through a plea agreement with the state. In exchange for his plea, the state is recommending a 10-year suspended sentence with the Montana Department of Corrections.

The plea agreement also called for the state to dismiss the other six counts against Mahoney, a typical element of a non-binding deal, which District Judge Dirk Sandefur did during the hearing.

Translation: Sandefur accepted a plea deal negotiated between the prosecution and the defense. Mahoney ended up getting 6 years of probation on a deferred sentencing, meaning if he walks the straight and narrow he has the possibility of getting his record cleared. The RSLC apparently takes exception to Sandefur doing something other than going with the prosecutor’s standard recommendation of 10 years of probation, because really, isn’t the whole raison d’etre of a judge to do whatever the prosecutor wants? Judicial independence, you say? Everyone knows that’s a communist plot.

The Satanic Ritual case:

A Great Falls man charged with sexually assaulting a toddler as part of a satanic ritual was sentenced Thursday to time served for a lesser misdemeanor count in a plea agreement reluctantly entered into by an admittedly frustrated prosecution.

Mark A. Sprague, 26, of 512 2nd Ave. N., entered an Alford plea and was sentenced Thursday to the maximum year in jail, all but the 263 days served suspended, for negligent endangerment, a charge amended from felony sexual assault. One count of ritual abuse of a minor, also a felony, was dismissed.

According to an affidavit filed in District Court, in October 2001, police believe Sprague sexually abused a 3-year-old boy and killed a black cat in front of him as part of a Halloween ritual.

At other times, he reportedly drank cat’s blood in front of the boy and held a gun to the boy’s head, threatening to shoot him.

Same translation: Sandefur accepted a plea deal. More than that, the lesser charge that the defendant ultimately pled to, the fact that it was an Alford plea, and the fact that the plea meant the defendant would get out of jail the same day; screams “the prosecutor has no case.” Let’s check the tape:

The boy, now 5, was taken from his mother, who was Sprague’s girlfriend. The woman told investigators that Sprague said he would kill her if she told anyone about his activities, court records said.

However, her testimony proved unreliable, the boy’s therapist’s testimony was inadmissible, and prosecutors didn’t want to make the boy testify because he is too traumatized. The boy has been adopted.

Here’s how this went down: the prosecutor saw the writing on the wall and realized that he probably couldn’t get a conviction. He offered a plea to a non-registry offense, one to which would allow the defendant to get out of jail immediately. Rather than roll the dice on a trial, Sprague took the deal, which allowed the prosecutor to save a little face. Sandefur had nothing to do with it.

Look, no one expects intellectual honesty in an election. That was probably true when John Adams was running against Thomas Jefferson. What we should expect, though, is a sufficiently informed electorate so that they don’t fall for this kind of BS. Will Dirk Sandefur go the way of Ed Sheehy? We’ll find out in a couple weeks. In the meantime, the RSLC has bet almost a hundred grand that the voters of Montana are just that stupid.

Of course, there are two polar opposites to putting judges on the bench. The federal system which is highly partisan but results in lifetime appointments that tend to allow judges to forget their past political hook-ups versus the system in Montana that elects judges like every other office holder and reinforces in the minds of judges their political affiliations throughout the term of the judgeship.

But there is a middle ground. As you well know, it is called the merit system. Two-thirds of the states and the District of Columbia select some or all of their judges under the merit system.

Generally, the system works like this: Merit selection is a way of choosing judges that uses a nonpartisan commission of lawyers and non-lawyers to locate, recruit, investigate, and evaluate applicants for judgeships. The commission then submits the names of the most highly qualified applicants (usually three) to the appointing authority (usually the governor), who must make a final selection from the list.

Importantly, particularly for prairie populists everywhere, for subsequent terms of office, judges under the merit system are evaluated for retention either by a commission or (as in Nebraska) by the voters in an uncontested election where the voters say “yes” or “no” as to whether the judge should be retained. If the judge is not retained, then the system starts over again to select a new judge.

Does the merit system do away with the partisan politics of judicial selection? The answer is hell no. But in the end, it does offer judges some opportunity to shed bits and pieces of their past allegiance to political parties as they go about judging. This is because they know that they have time (in Nebraska six years) to make a reputation as a solid judge and will normally be retained unless they are stupid, venal, or too much the political hack.

While I greatly prefer the federal system over any other precisely because it so blatantly political yet greatly leavened by a lifetime appointment, I simply cannot understand why the many thoughtful people in Montana prefer electing judges. If you are a thoughtful populist (and I am certainly not a populist) the merit selection plan ought to be the judicial selection system you prefer as it gives you political input and semi-judicial independence.

In 1962, Iowans changed the way they chose their judges to a system called merit retention, which requires that a special commission nominate qualified judicial candidates for the governor to appoint. Generally, judges serve six to eight years before facing the voters in a retention election.

Then came Nov. 2, 2010, when Iowa voters flooded voting booths in record numbers to remove three sitting supreme court justices, including the chief justice, who were part of a controversial but unanimous decision in 2009 that permitted same-sex marriages.

All the best.

RGK

PS Others,not me, view the word “Iowa” as an acronym for “Idiots Out Wandering Around.”

It seems like ever since Roe, the appointment of judges has gone from a proxy fight over social issues (’80s and ’90s) to more-or-less outright denial that a judge should have qualification beyond his political party (Harriet Miers, Scalia’s vacancy).

At the time of Roe (1973), I was then a law clerk to a judge on the Eighth Circuit Court of Appeals who, ironically, replaced Harry Blackmun on the Circuit. I remember thinking then that Roe was quite good policy but terribly bad law unsupported by persuasive legal reasoning.

What really ginned up wrangling about justices was the horrid treatment of Robert Bork in 1987 (shortly after I was appointed as a Magistrate Judge). Whatever one thinks about Bork’s jurisprudence (originalism), he was brilliant and eminently suited for the Supreme Court.

But, in a sense, you are right about Roe. Feminists (and hence the Dems) set out to engage in a scorched earth policy when it came to Bork. They knew his powerful intellect and penetrating writing skills posed a clear and present danger to the hack job that poor Harry had cobbled together in the medical library of his former client, the Mayo Clinic.

I didn’t answer your question directly. The answer is “no.” Example: Chief Justice of the United States Earl Warren was formally nominated on January 11, 1954, and was confirmed by the United States Senate on March 1, 1954, by voice vote. All the best.

Ohio is a judicial election state but appear without party on the ballot. Although the governor gets to fill vacancies until the next general.

Overall, it’s really only once every six years that the parties seems to matter. And even then, it’s mostly a matter of fundraising sources and slate cards. Those facts along with the state judicial cannons, give judges a lot of opportunity to remain aloof from partisan politics. In fact, when an incumbent is challenged, it can be hard even for them to mobilize support and fundraising.

My feelings on “nonpartisan” merit selection committees and the like is that they are indeed still partisan and political, it’s just disguised. I think it’s always better for that stuff to be visible to the voters.

The problem with selecting judges in contested elections–whether on a partisan or non-partisan ballot–is that such a system can have an influence on the judge later on while judging if he or she is involved in a heated contest.

Having grown up in Toledo, Ohio (actually Maumee), I know a little about things there. Take for example the judicial election of 2000

“when a group affiliated with the Ohio Chamber of Commerce called Citizens for a Strong Ohio spent about $4.2 million in an attempt to unseat Justice Alice Robie Resnick and shift the ideological orientation of the Court in a manner it believed would create a more favorable environment for business in Ohio. The campaign was marked by harsh attack ads, such as one against Resnick that showed a female judge behind a desk changing her vote to favor plaintiffs after having a pile of cash dumped on her desk. The ads didn’t work; other groups countered with their own ads, and Justice Resnick won her race.” Jacob H. Huebert, Judicial Elections and Their Opponents in Ohio, Federalist Society (November 2010).

After that supremely nasty election, it is very hard for me to believe that Justice Resnick didn’t look over her shoulder when deciding personal injury cases. That said, I supposed it didn’t help much that she was convicted in 2005 of DUI* and decided not to run for office again.

All the best.

RGK

*On January 31, 2005, she was arrested by the Ohio State Highway Patrol for DUI. Several motorists had used cell phones to call in a Jeep Grand Cherokee showing erratic driving. State police confronted her in a gas station and she refused a field sobriety test, resulting in the one-year automatic suspension of her license. After refusal, she ignored police orders to remain at the gas station and drove off. She was pulled over a few minutes later and failed a sobriety test. Justice Resnick registered a Blood Alcohol Concentration of 0.22, nearly three times the legal limit in the state of Ohio. A dashboard camera recorded the incident, and much of the audio showing Justice Resnick trying to use her office to get out of the DUI charge appeared on the internet.

That election is what led to some re-consideration of the election process, which went nowhere. But it stands out as exceptional. Also, in a number of ways, the Supreme Court was doing a number of “wild” things in those days, such as repeatedly ruling school funding unconstitutional, striking down tort reform, and pronounced the notorious Scott-Ponzer decision. It brought a lot of attention to itself.

That election was primarily special interest groups duking it out in ads, rather than being primarily partisan warfare. Although, the Supreme Court had repeatedly put itself at odds with the other branches, which didn’t help.

I think that sort of money would have been spent in a retention election because of how reviled some of those decisions were.

[…] 20, 2016 (Fault Lines) — Ed. Note: In light of the attack ads against a candidate for the Montana Supreme Court candidate, we have charged Noel Erinjeri and Chris Seaton to debate the question: Given the attack on […]

[…] 20, 2016 (Fault Lines) — Ed. Note: In light of the attack ads against a candidate for the Montana Supreme Court candidate, we have charged Chris Seaton and Noel Erinjeri to debate the question: Given the attack on […]

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